Sunday, 24 January 2016

Can Member States seize asylum-seekers’ assets?

In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers' assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.

Denmark

In November 2015 the Danish government presented among a catalogue of 34
measures to discourage people from seeking asylum in Denmark, to introduce the
possibility to confiscate cash, jewellery and other assets of asylum seekers in
other to make them contribute in the costs of their reception. They proposal
caused heated debate after a Minister suggested that wedding rings could be
also confiscated. In January the Social-Democratic Party voiced that it would
only support this proposal of the centre-right minority government, only assets
above 1,340 euro could be confiscated. The new law is to be voted on 26
January.

Similar practices or rules are to be found in the national law of other
Member States.

Switzerland, only few asylum
seekers concerned

According to Dutch newspapers, Swiss legislation requires asylum seekers
who enter the country with more than 1,000 Swiss francs have report and hand
over the surplus to the Swiss authorities. The rule only covers money, not
other valuables such as personal jewellery. Of the 45,000 asylum seekers coming
to Switzerland in 2015, only 112 had to hand in a surplus, totalling around €
150,000 that year. Not really an impressive amount. Most asylum seekers,
apparently, do not carry large amounts of money, once they arrive in Western
Europe. Besides, under Swiss law beneficiaries of protection with income from
employment, have to pay 10% of that income to contribute to reception costs
during ten years.

Germany, an old practice?

The German legislation on reception of asylum seekers, the Asylbewerberleistungsgesetz, provides,
already several decades that asylum seekers can be forced to contribute from their
own assets and income to the cost of their reception. Asylum seekers have to
declare their assets and income. The rules for applicant for public social
assistance are applicable. From the assets only 200 euro and the goods
necessary for exercising a profession or employment are exempted (§ 7(5) of the
law). German national TV news reported on 21 January 2016 that in Bavaria asylum seekers were asked by the police to hand over their cash in excess of €750. In Baden-Wurttemberg the threshold is €350. The federal law leaves room for difference in application between the Lander. A spokesman of the Baden-Wurttemberg minister of integration stated that although cash was taken from refugees in individual cases following police spot-checks, searches are not carried out on every refugee. He was quoted as saying "In the context of a general police check it was established that individual refugees had cash with them" and "Refugees are not being systematically searched for cash or valuables".

Netherlands, only
contributions from income not from assets

The Junior
Minister for Immigration recently told the press that that he was not going to
follow the Danish and German example and force asylum seekers to hand over
small amounts of cash and jewellery. His spokesman explained this is not on the
agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016) Already for decades asylum
seekers in the Netherlands if lawfully employed (only possible after six months
and until an asylum status is acquired for 24 weeks per year only) have to pay
the surplus above 185 euro of his monthly income as a contribution in reception
costs.

Compatible with EU law?

Are such rules and practices on seizure of assets in order to contribute
in reception costs compatible with EU law, and especially with the Reception
Conditions Directive 2013/33? We do not deal here with the question
whether such confiscation of valuables and jewellery is compatible with Article
1 of the First Protocol and Article 8 ECHR.

The relevant provisions are to be found in Article 17(3) and (4) of the
2013 recast Reception Conditions Directive, reading:

“3. Member
States may make the provision of all or some of the material reception
conditions and health care subject to the condition that applicants do not have
sufficient means to have a standard of living adequate for their health and to
enable their subsistence.

4. Member
States may require applicants to cover or contribute to the cost of the
material reception conditions and of the health care provided for in this
Directive, pursuant to the provision of paragraph 3, if the applicants have
sufficient resources, for example if they have been working for a reasonable
period of time.

If it
transpires that an applicant had sufficient means to cover material reception
conditions and health care at the time when those basic needs were being
covered, Member States may ask the applicant for a refund.”

Identical provisions were already present in Article 13(3) and (4) of the original Reception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.

Legislative history of EU rules on financial contributions by asylum
seekers

The Commission in its proposal for the
original 2003 Directive (COM(2001)181) inserted an Article 19 on financial
contributions. Member States could require applicants who can afford
to do so to contribute to the cost of their
material reception conditions. The relevant decisions should be taken
individually, objectively and impartially and reasons shall be given. An effective judicial remedy against
such decisions should be available, making explicit reference to Article 47 EU
Charter.

During the first negotiations on this Article reaction eight Member
States made proposals for amendments. Six Member States proposed to refer to
“the general principle of the real need of the applicant, which would lead to
entitlement to material benefits” (document 11320/01, p. 33). Germany proposed
that “some of the applicant's income
should be protected in all cases”. That proposal only covered the asylum
seeker’s income. But it implied that all the income above a certain threshold
could be seized by a Member State. The Netherlands made a similar proposal
linking the asylum seeker’s contribution to his income: “if the applicant has a
certain income, a contribution may be asked of him to cover some or all of the
costs”. Both proposals intended to regulate a possibly contribution in
reception costs, but did not include the asylum seekers’ assets as an object of
seizure.

In January 2002 the text of Article 19 was consolidated with two other
Articles in a new Article 18, entitled ‘Financial means test’ (document
5300/02). The Dutch proposal, concerning contribution out of income from
employment was included. The German proposal, implying that a Member State
could seize all income above a certain fixed threshold, did not find its way in
this and later versions of provisions on financial contributions by asylum
seekers. During the negotiations in
February 2002 this Article was considerably shortened (a.o. replacing the
general means test by the condition that the applicants do not have
sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was
renumbered Article 17 (document 6253/02). Only three Member States made
suggestions: Portugal and Greece pleaded for more reduction of the reception
conditions, once an asylum seeker or his family member had been allowed access
to the labour market. Germany proposed to integrate Article 17 in the general
Article on material reception conditions.

Early March 2002, the Asylum Working Party examined the amended proposal
based on drafting suggestions from the Spanish Presidency (document 6906/02).
Parts of the former Article 17 were now included in Article 13, apparently
following German suggestion.

In April 2002 on suggestion of Germany the words “and health care” were
added in par. 3 of Article 13. Moreover, the words “for example if they have
been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with
participation in the labour market again (document 7802/02). This version of
Article 13 of the amended proposal was accepted by Coreper and by the Council
in 2002 and became part of the Directive adopted with unanimity on 27 January
2003.

In
addition, the 2013 recast Directive now states that Member States can refuse or
withdraw benefits if asylum-seekers have ‘concealed financial resources’
(Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTIjudgment,
has ruled that Article 20 sets out an exhaustive list of grounds for reducing
or withdrawing benefits.

Analysis

If
this legislative history is combined with the general principles of EU law and
the EU Charter, we conclude:

(1)
The issue of financial contributions by asylum seekers in material reception
costs from their own means was been discussed repeatedly during the
negotiations on the Directive.

(2)
This issue was discussed repeatedly also in relation to the access of asylum seekers
to the labour market in the Member State and the income derived from such
employment.

(3)
The Directive allows Member States to impose a means test for access to
material reception conditions, but this does not entail confiscation of assets.

The test is not whether the asylum seeker has more than a certain fixed amount of money or assets, but whether the asylum seeker does have sufficient means to have a standard of living adequate for his health and to enable his subsistence.

(4) Since
(a) the issue of financial contributions by asylum seekers in material
reception costs is covered by the directive and (b) the Directive sets out minimum
standards in order to avoid second movements between Member State (recitals 7
and 8), Member States are not allowed to apply less favourable rules only more
favourable rules (see recital 15); the Court of Justice repeatedly held that
Member States cannot introduce other conditions than those provided for in the
EU Directive or Regulation, see the judgments in Ben Alaya, KoushkakiandAir Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or
regulate access to benefits are surely exhaustive.

(5)
Article 13(3) allows Member States to make the grant of material reception conditions and health
care subject to the condition that applicants do not have sufficient means to
have a standard of living adequate for their health and to enable their
subsistence. It follows that such decision to exclude an asylum seeker from
material reception conditions can only be made after the Member State first has
established that applicants have sufficient means to have a standard of living
adequate for their health and to enable their subsistence in the Member State.
In accordance with the general principle of proportionality in EU law, it is
questionable whether a Member State could refuse any access to the benefits
system, just because an asylum-seeker has a small amount of cash or valuables.
Access should only be refused where the applicant either has an ongoing alternative source of funds, or
the asylum-seeker has so much wealth that he or she could live off it for a
considerable period of time.

(6) Article 13(4) allows Member States
to require applicants to contribute to the cost of the material reception
conditions and of the health care, when the applicants have sufficient
resources. The conditions of paragraph 3 explicitly apply here as well. The
Commission with regard to Article 19 of its proposal rightly stated: “Decisions
on applicants’ contribution should be taken individually, objectively and
impartially and reasons must be given if they are negative in order to make possible their
review as accurate as possible.”

While, in the final version of the
Directive this clause applies to the reduction or withdrawal of benefits, not
the obligation to contribute toward costs, the general principles of EU law
still require that national administrative decisions linked to EU law must be
fair (see the CJEU’s YS and M and S ruling
on asylum procedures, discussed here; and the Mukarubega and Boudjliba
judgments on the return of irregular migrants, discussed here). This
means that any decision on asylum-seekers’ contributions has to be an
individual decision giving reasons, taking into consideration the individual
situation of each asylum seeker.

Such decisions must also comply with other
general principles of Union law, in particular the principle of proportionality,
which means that any confiscation of property must be necessary to achieve a
genuine government end. It is hard to see how it is necessary to confiscate
property when a less severe measure (delaying or curtailing benefit payments by
an equivalent amount, in accordance with the rules on a means test) could achieve
the same objective. Again, the principle suggests that asylum-seekers should
only be required to contribute where applicants either have an ongoing alternative source of funds, or
have so much wealth that they could live off it for a considerable period of
time.

It must also be possible to challenge
any decision made by a national authority on confiscation, in accordance with
Article 47 (the right to an effective remedy) of the EU Charter of Fundamental
Rights.

(7) In conclusion: a national rule
allowing authorities to confiscate all means of an asylum seeker above a fixed
amount, irrespective of the individual circumstance on the grounds mentioned in
point 4 and 6 above is not compatible with Union law.

(8) Of course, Denmark and Switzerland
are not bound by the Directive, Denmark because of its opt-out and Switzerland
because it is not a Member State. Ireland opted out as well. But all other
Members State are bound by Directive 2013/33 and the UK is opted in and is
bound by the original Reception Conditions Directive 2003/9.

*The paragraph on Germany was amended on 27th January 2016 to add further detail.Barnard & Peers: chapter 26

Legislative history of
Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive
2013/33 on financial contributions by asylum seekers in reception costs

In
the Commission’s proposal for the original 2003 Directive COM(2001)181 there
was a separate Article 19 reading:

Article 19

Financial contribution

1. Member States may require applicants
who can afford to do so to contribute to the cost of

their material reception conditions or
to cover it. Decisions to provide material reception

conditions not free of charge shall be
taken individually, objectively and impartially and

reasons shall be given.

2. Member States shall ensure that
applicants have the right to bring proceedings before a court against the
decisions referred to in paragraph 1 and that they have access to legal
assistance.

The Explanatory Memorandum to this
Article 19 read:

“This Article concerns the financial
contribution applicants for asylum may be asked to

provide if they are provided with
material reception conditions.

(1) This paragraph allows Member States
to require applicants who can afford it to contribute

to the cost of their material reception
conditions. The purpose is to meet the Council’s

concern regarding the requirement of
“inadequate” resources of the applicants for

asylum. In any case Member States should
ensure that applicants for asylum have the

possibility of being housed as even
applicants with sufficient financial means might find

it impossible to find suitable housing.
Decisions on applicants’ contribution should be

taken individually, objectively and
impartially and reasons must be given if they are

negative in order to make possible their
review as accurate as possible.

(2) In conformity with the Charter of
fundamental rights (Article 47) and in line with the

case law of the Court of Justice, this
paragraph ensures that the decisions taken according

to paragraph 1 can be reviewed by a
judicial body (including an administrative judicial

body such as the Conseil d’Etat in France) at least
in the last instance.”

The first reaction of Member States on this Article
was in document 11320/01, p. 33:

“D/E/NL/P/S and UK:
reference should be made to the general principle of the real

need of the applicant, which would lead to
entitlement to material benefits.

D: some of the applicant's income should be protected in all cases.

NL: stipulate that if the applicant has a certain income, a contribution
may be asked of him

to cover some or all of the costs.

D and UK: establish a general principle laying down that
Member States may decide

whether or not the applicant requires
material benefits.

L and A: make provision for the case in which an applicant is
invited to stay in the territory

of a Member State by a national who, if
applicable, has served as guarantor for the purpose

of obtaining a tourist visa. In this case,
it should be possible to call on the national to

contribute to the costs.

A: reservation on the second sentence in that it creates an obligation to
notify these

decisions in writing.

3 A and S: reservation on the financial aspects of legal assistance.

D and UK: a general provision on forms of appeal at the
beginning of the Directive should

be sufficient.

In January 2002 the text of Article 19 was consolidated
in a new Article 18, consolidating several provisions of the proposal (document
5300/02):

“Article 18 (consolidating Articles 14 bis, 15(4) and
19)

Financial means test

1. Member States may make the
grant of all or some of the material reception conditions,

as well as the requirement that
applicants and their accompanying family members

cover or contribute to the cost
thereof, subject to a financial means test of applicants and

their accompanying family
members in accordance with the provisions of this Article.

2. Member States may also reduce
or withdraw material reception conditions within a

reasonable period after
applicants or their accompanying family members commence an

employment activity in
accordance with Article 13, applying the test established in

paragraph 1.

3. Applicants and their
accompanying family members may be subject to one or more of

the measures provided for in
paragraphs 1 and 2 when it is confirmed that they have

sufficient means.

4. Decisions under this Article
shall be taken individually, objectively and impartially and

reasons shall be given.”

In
February 2002 this Article was considerably shortened (a.o. deleting the means
test and the reference to income from employment) and renumbered as Article 17,
reading together with the footnote by Member States and the Commission
(document 6253/02):

“Article 17 (formerly 18)1

Financial means criteria

1. Member States may make the grant of all
or some of the material reception conditions subject to the condition that
applicants do not have sufficient means to cover their basic needs.

2. If it transpires that an applicant had
sufficient means to cover these basic needs at the time

when material reception conditions were
being provided, then Member States may ask these

to refund.2

3. Decisions under this Article shall be
taken individually, objectively and impartially and

reasons shall be given. 3

1 D :
this provision should be placed at the end of Article 15.

2 P,
supported by EL, suggested adding the following :

"3. Member States may also reduce or
withdraw material reception conditions within a

reasonable period after applicants and
their accompanying family members have been

allowed access to the labour market in
accordance with Article 13, applying the test

established in paragraph 1.

4. In the cases referred to in paragraph
3, if they are not financially independent, Member

States shall grant them the food allowance
mentioned in Article 8 and access to basic

social care."

(present paragraph 3 would become 5).

3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former

Article 14A(6)) :

"Member States shall ensure that
before the decisions referred to in paragraph 2 are notified to

the applicants for asylum [and their
accompanying family members] the other Articles of

Chapter III of this Directive are applied".

At its meeting on 5 and 6 March 2002,
the Asylum Working Party examined the amended proposal based on drafting
suggestions from the Spanish Presidency, document 6906/02. Parts of the former
Article 17 were now included in Article 13, apparently following the suggestion
made before by Germany with regard to that former Article 17.

Article 13

General rules1

1. Member States shall ensure that
material reception conditions are available to applicants when they make their
application.

2. Member States shall make provisions
on material reception conditions to ensure a standard of living adequate for
the health and the well-being of applicants.

Member States shall ensure that standard
of living is met in the specific situation of persons

who have special needs, in accordance
with Article 17, as well as in relation to the situation of

persons who are in detention.

3. Member States may make the grant of
all or some of the material reception conditions subject to the condition that
applicants do not have sufficient means to have a standard of living adequate
for their health and well-being.2

4. Member States may require applicants
to cover or contribute to the cost of the material

reception conditions and of the health
care provided for in this Directive, pursuant to the

provision of paragraph 3, when the
applicants have sufficient resources.

5. Material reception conditions may be
provided in kind, or in the form of financial allowances or vouchers or in a
combination of these provisions.

Where Member States provide material
reception conditions in the form of allowances or

vouchers, their amount shall be set in
accordance with the principles set for in this Article.

1 A : a general rule providing for
exceptions to be applied by Member States in extraordinary

situations should be introduced.

2 B, D, F and P : the term "well-being" is s
too vague and should be defined.

NL, S, UK : say "to enable their
subsistence" instead of "to have a standard of living adequate

for their health and well-being".

In April 2002 on suggestion of Germany
the words “and health care” were
added in par. 3. Besides the words “for example if they have been working for a reasonable
period of time” were added in par. 4, introducing an explicit link with participation
in the labour market again (document 7802/02).

This
version of Article 13 of the amended proposal was accepted by Coreper and by
the Council. It became part of the Directive adopted on 27 January 2003